On February 6 2007 members of the Maddox family of Bardstown Kentucky were killed in a housefire, when someone dropped a burning cigarette on a piece of upholstered furniture.   While the accident was a senseless tragedy, as almost everyone knows smoking is a foolish practice.  Even more foolish is to smoke indoors, due to the risk of sleep or carelessness causing a fire.

Everyone knows that as well, except for the attorney for the Maddox family, who filed suit against Phillip Morris USA and Jackson Furniture Industries.  The attorney, Eric Jacobi of Kenealy & Jacobi in Louisville, Kentucky, claimed that Phillip Morris was negligent in failing to design a fireproof cigarette, and that Jackson was negligent for failing to design fireproof upholstered furniture, or to warn consumers that prolonged contact with a lit cigarette causes furniture to combust.

Perhaps the custom of smoking tobacco is a rare and exotic one in Kentucky, but I doubt it.  Evidently the courts have heard of it, because the case was just dismissed.

Ordinarily I might let a suit as foolish and arguably frivolous as this one go, but the opinion of Judge Charles Simpson of the Western District of Kentucky is worth quoting, in other contexts:

[O]ur entire world is a potentially dangerous place in which to live. We use and are surrounded by hot, sharp, electrically charged, slippery, hard, combustible, explosive, potentially deadly, possibly injurious, noxious, fast and heavy things. All are dangerous. But if they were all unreasonably dangerous, even the cave man would have to put out his cooking fire. We find here, without difficulty, that cigarettes which have burning embers and couches which might be lit on fire if brought in contact with a burning cigarette, are not thereby unreasonably dangerous as a matter of law.

No court has found that there is a duty to make our world fool-proof or risk free. Nor is there a duty to warn of obvious consequences of foolish behavior.

In this case, we will reject the opportunity to hold that just because something could happen, failure to prevent it is unreasonable.

The deaths which occurred in this instance are as regrettable as they are tragic. There is no other way to describe such horrible loss of life.

Nothing this court can do will change what happened. But we are obliged to ensure that the law is applied dispassionately, and in a principled way.

You may read Judge Simpson’s opinion in full here: walker-phillip-morris-memo-opinion

Unfortunately, we live in a world where lawyers, politicians, cops, and busybodies seek to protect us from the one thing that even God can’t save us from, our own folly.  Or so they claim.  A parent seeks to protect children, but also to control them.  And that’s what it’s about: control.  When you can no longer buy a six pack of beer or a pack of cigarettes, eat fast food, drive a fast car, or state a controversial opinion, you won’t be any safer.  You’re still going to die.  But they will own you every minute up until you die.

Now I don’t necessarily lump the lawyer who brought this case in with, say, the city council of Los Angeles.  There are all sorts of reasons to bring an arguably frivolous suit, some of which could even be characterized as well-meaning, such as sympathy and the inability to say no.  But sometimes, especially in civil litigation, the ethical thing to do is just that, to say, “I am sorry for your loss, but I cannot help you to bring a suit that I know you will lose.”  While one certainly hopes that the attorney didn’t raise his clients’ hopes for this suit, one questions whether, in the end, the year of litigation in which they’ve been engaged has only brought them more pain.

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